reflections at the intersection of American history, religion, politics, and academic life

Will Future Generations Condemn the Recent Supreme Court Decisions?

Historians are not prophets and history, despite what Barack Obama and other progressives say, does always lead toward justice as understood by the person making the claim. I have been saying this for a long time, but I really like how Jacob Bacharach puts in his New Republic piece “Don’t Count on History to Judge Wisely.” Bacharach writes in the context of Justice Sotomayor’s dissenting remarks in the Trump v. Hawaiitravel ban case. Sotomayor said that “history will not look kindly on the court’s misguided decision today, nor should it.”

Here is a taste of his piece:

History’s superseding judgment also crept into the left’s responses in the National Institute of Family and Life Advocates case, the other decision announced on Tuesday, in which another narrow conservative majority ruled on free speech grounds that anti-abortion “crisis pregnancy centers” can, in effect, deceive people about the services they provide, overturning a California state law that compelled certain disclosures. The court, much of lefty Twitter agreed, had once again found itself on the wrong side of history. This presumes that the left, broadly defined, will be the ones writing it, because the left will prevail.

This is magical thinking. The Democrats are completely out of power in Washington and across most of the country, and the Supreme Court is one retirement or heart attack away from a 6-3 conservative majority (and a chief justice who is just 63). It may be reassuring to quote King: “The arc of the moral universe is long, but it bends toward justice.” But that famous line was, in context, an explicitly theological consideration, not a statement about the inevitability of temporal social justice. Moreover, that refrain obscures the difficult fact that King grew increasingly pessimistic in his final years, increasingly doubtful that history was predisposed to justice at all.

Moral superiority in the absence of political power is useless, and self-reassurance in the inevitable upward motion of progress—that it may be interrupted or delayed, but rises inexorably—is self-indulgence. The GOP has spent the last half-century methodically and patiently laying an infrastructure for the acquisition and, more importantly, for the exercise of power. Its broad capture of the American judiciary is one of the great political feats of the modern era. The ostensible opposition party lacks a clear strategy for the coming legislative midterms, let alone for the incremental grooming of a cohort of jurists to place on the bench two to three decades down the road.

“Indeed, the Government has fallen into the hands of the Slave Power completely. So far as national politics are concerned, we are beaten — there’s no hope. We shall have Cuba in a year or two, Mexico in five; and I should not wonder if efforts were made to revive the slave trade, though perhaps unsuccessfully, as the Northern slave States, which live by the export of slaves, would help us in opposing that. Events hurry forward with amazing rapidity: we live fast here. The future seems to unfold a vast slave empire united with Brazil, and darkening the whole west. I hope I may be a false prophet, but the sky was never so dark. Our Union, all confess, must sever finally on this question. It is now with nine-tenths only a question of time.”